HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
NEW SOUTH WALES v. THE COMMONWEALTH ;
17 December 1975
Constitutional Law (Cth)—International Law
Constitutional Law (Cth)—External affairs—Territorial sea—Continental shelf—Sovereignty—Law vesting sovereignty in Commonwealth—Validity—Whether implementing Convention on Territorial Sea and Contiguous Zone and Convention on Continental Shelf—Whether territorial sea external to Australia—Whether colonies had proprietary rights in territorial sea—Whether States now include territorial sea—Effect on colonial boundaries of enactment of the Constitution—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxix.), 122—Seas and Submerged Lands Act 1973 (Cth). International Law—Territorial sea—Continental shelf—Sovereignty—Australia—Whether sovereign rights vested in Commonwealth or States—Whether States have international personality—Convention on Territorial Sea and Contiguous Zone (Geneva 1958)—Convention on Continental Shelf (Geneva 1958).
Decisions
December 17.
The following written judgments were delivered:-
BARWICK C.J. The Seas and Submerged Lands Act 1973 (Cth) ("the Act"), passed by the Australian Parliament, came into operation on the date on which it received the Governor-General's assent, namely, 4th December 1973. The Act has several recitals. They are as follows:
"WHEREAS a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia: AND WHEREAS Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone a copy of which in the English language is set out in Schedule 1: AND WHEREAS Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources: AND WHEREAS Australia is a party to the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 2:"The First Schedule to the Act contains the international Convention on the Territorial Sea and the Contiguous Zone and the Second Schedule contains the international Convention on the Continental Shelf. Each Convention was signed on behalf of Australia on 29th April 1958. Pursuant to Art. 29 of the Convention on the Territorial Sea and the Contiguous Zone, and the deposit of the requisite number of instruments of ratification or accession, that convention came into force on 10th September 1964. Pursuant to Art. 11 of the Convention on the Continental Shelf and the deposit of the requisite number of instruments of ratification or accession, it came into force on 10th June 1964. (at p358)
2. By s. 6, the Act declares and enacts that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth". The territorial sea is as it extends from time to time, the Governor-General having power from…
Keep reading for free
Create a free CaseChat account to read New South Wales v The Commonwealth and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [1975] HCA 58
- Decision Date
CaseChat Overview and Summary
The central legal question before the Court was whether the Commonwealth Parliament had the constitutional power to enact legislation that directly regulated the terms and conditions of employment for officers of the public services of the states. This involved an examination of the division of powers between the Commonwealth and the states under the Australian Constitution, particularly the scope of Commonwealth legislative powers and the implied constitutional prohibition against the Commonwealth's undue interference with the functioning of state instrumentalities.
The Court, by majority, held that the Commonwealth *Public Service Arbitration Act 1920* was invalid insofar as it purported to apply to state public servants. The majority reasoned that the Constitution, while granting the Commonwealth certain enumerated powers, also implicitly preserves the independence and operational capacity of the states. Legislation that directly controlled the employment conditions of state public servants was found to unduly impair the ability of the states to carry out their essential governmental functions, thereby exceeding the Commonwealth's constitutional reach. The principle applied was that the Commonwealth cannot legislate in a way that cripples or unduly interferes with the essential functions of a state.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.